My gut feeling is that, for reasons I laid out in Trump Declares War on the Administrative State, Dellinger's case is much closer to the Consumer Financial Protection Bureau case that resulted in the protection given that agency's director being tossed than it is to the safe harbor of Humphrey's Executor. Dellinger is not in charge of a "quasi-legislative" or "quasi-judiicial" organization; he wields quintessentially executive power, and to insulate him from the chief executive of the land is unconstitutional. In his dissent, Gorsuch basically said there was no legal way to reinstate Dellinger. But as Jonathan Turley said, a majority of the Supreme Court would rather this case go away than rule on the facts it offers.

Trump signed two Executive Orders Thursday that focus on rolling back the role of the federal government beyond its statutory functions and ensuring that those efforts are emphasized across all departments and agencies. The orders are titled "Commencing the Reduction of the Federal Bureaucracy" and "Ensuring Lawful Governance and Implementing the President's "Department of Government Efficiency" Regulatory Initiative."

Let's take a look at them one at a time, beginning with the easiest. //

When combined with the Trump Executive Order requiring the repeal of ten regulations for each new one published in the Federal Register (see Unleashing Prosperity Through Deregulation), we can see the groundwork being laid to eliminate the superfluous government agencies and regulations that have no greater purpose than to aggrandize power to the bureaucracy. Add that to the concerted legal attack on the Administrative State (Trump Declares War on the Administrative State), and Trump could very well end up having rolled back a century of our descent from a constitutional republic into a being held in serfdom by an unelected, responsive, and uncaring bureaucracy. //

Popdaddy
6 hours ago
Months of pre-election planning went into this. There are other plans and so much more can be accomplished. //

Dieter Schultz
5 hours ago

When combined with the Trump Executive Order requiring the repeal of ten regulations for each new one published in the Federal Register (see Unleashing Prosperity Through Deregulation), we can see the groundwork being laid to eliminate the superfluous government agencies and regulations that have no greater purpose than to aggrandize power to the bureaucracy.

I think soon... maybe before the 6 month mark but, sooner rather than later... we'll need another attack vector on the bureaucratic state and that would be for enough states to get together and challenge the regulations and federal laws as being unconstitutional in that they encroach on the states' duties and responsibilities under the Constitution.

Trump can apply tremendous pressure from the inside and deflate the bureaucratic bubble but, I suspect, it'll require the states... well, anyway, a core of the red states... to make it impossible for the federal government's overreach to ever be resurrected by the elites when Trump and his heirs leave the world's stage.

In 1932, FDR decided he had better use for the seat and summarily fired Humphrey. Humphrey sued but died five months later. The executor of his estate pressed the suit to recoup five months' salary. This spat was destined to become a landmark Supreme Court precedent called Humphrey's Executor v. United States, 295 U.S. 602 (1935), or just Humphrey's Executor. Mr. Humphrey's estate hit the jackpot.

In a unanimous opinion, the Supreme Court ruled: //

This ruling let independent agencies do whatever they wished. As rulemaking became a big deal, an independent agency in the hands of political opponents of the president with the power to interpret statutes and make legally binding regulations could engage in sabotage of the president's agenda. //

Shipwreckedcrew @shipwreckedcrew
.
Earlier today I posted a Substack article arguing that the TROs being sought against the Trump Admin are, in many respects, great opportunities for the Admin to assert its Article II authority over the Admin. state and push back against encroachments by Congress and the lower…

SCOTUS has danced around the continuing vitality of the Humphrey's decision for many many years. The issue is now squarely before them. This is a fight worth having at this moment in time.

And the most important part about fights worth having is that you need someone who will fight them. And we do. //

Musicman
6 hours ago
Let's pray we finally have a Supreme Court that cares about the Constitution. There are three branches and only three branches. Either each "independent" board reports to the Executive, the Legislative or the Judicial. Those are the only choices. The notion of any kind of board with any kind of power could exist apart from the three branches is simply unconstitutional. Period.

Judge Contreras relied on a very shaky 1935 precedent called Humphrey’s Executor v. United States. This precedent established the, in my view, unconstitutional and un-republican plethora of "independent" boards and commissions that carry out executive functions but aren't answerable to the guy in whom the "executive Power" of the United States is "vested." Recent cases have held that any commission holding anything other than an advisory capacity must be controlled by the President; how the MSPB's role in adjudicating employment disputes will be viewed is unknown.

This case is headed to the DC Circuit and the Supreme Court. Another similar case, that of Special Counsel Hampton Dellinger, is at the Supreme Court; Trump Sends Scorching Appeal of DC Court Order Reinstating Biden Appointee to the Supreme Court – RedState. In that case, Trump fired Dellinger, who had the same legal protections as MSPB judges. A judge ordered Dellinger reinstated, and the Supreme Court will get Dellinger's response to the government's objections at 2 p.m. Wednesday.

Other possible cases testing the limits of Humphrey’s Executor are the firings of 17 IGs, who, by statute, can only be fired after a 30-day notice to Congress and an explanation of the reasons, and a member of the National Labor Relations Board. //

Laocoön of Troy
10 hours ago
Remember corrupt FBI agents Peter Strzok and Lisa Page? Remember the friendly judge who they secretly met with at a party to plot their next moves against Trump? The crooked judge? Judge Rudolph Contreras (Obama appointee). Strzok referred to him affectionally as "Rudy" like they were old buds.

https://www.foxnews.com/politics/strzok-page-texts-reveal-personal-relationship-between-fbi-official-and-judge-recused-from-flynn-case

Looks like the crooks from Trump's first term are trying to get the band back together.

all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register. //

The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General. //

If this order sticks, Trump has permanently and fundamentally changed the Executive Branch, as it has existed since 1935, in less than a month. //

bk
9 hours ago edited
Liberals: "Musk is unelected and therefore can't tell us what to do!"
Also libs: "How dare Trump interfere with tens of thousands of unelected bureaucrats who have been telling us what to do for decades!"

Though they lost, they got a solid dissent to work with and went to the Supreme Court.

Their arguments are that the president has absolute authority to remove officials at will and that every time the Supreme Court has heard a case similar to Dellinger's, they have agreed. //

Whatever the agency, for the President to discharge his constitutional duty to supervise those who exercise executive power on his behalf, the President can “remove the head of an agency with a single top officer” at will. Collins 594 U.S. at 256. On that basis, President Biden in 2021 fired the single head of the Social Security Administration without cause. //

!This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will. “Where a lower court allegedly impinges on the President’s core Article II powers, immediate appellate review should be generally available.”. //

As a general matter, the Constitution “scrupulously avoids concen-trating power in the hands of any single individual” save for the President, who is“the most democratic and politically accountable official in Government.” Id. at 223-224. Single agency heads thus must be accountable to the President through at-will removal. There are only four single agency heads upon whom Congress has sought to confer tenure protection: the Directors of the Consumer Financial Protection Bureau (CFPB) and Federal Housing Finance Agency (FHFA), the Commissioner of Social Security, and the Special Counsel here. The former three are undisputedly subject to at-will removal under Article II. This Court’s precedents foreclose any special exception for the Special Counsel.

Margot Cleveland @ProfMJCleveland
·
Replying to @ProfMJCleveland
3/3 As drafted, the Order would prohibit Donald Trump & heads of agencies from assessing data or firing anyone. Would be most restrictive of all TROs entered to day if Court enters.
10:23 PM · Feb 15, 2025

ConservativeInMinnesota
an hour ago
Ranked choice voting uses multiple rounds of voting. That’s effectively more than one vote per person. That arguably makes it unconstitutional. //

anon-rnsl
3 minutes ago
Here is my solution as a Constitutional amendment:

If you're not eligible to vote for a candidate for public office, you cannot contribute to their campaign.... Period.

But this is a high bar indeed.

Better results might occur at the state level.... after all Sates, not the Federal Government, runs elections.

So here ya go....

You're not eligible to vote for an initiative, proposition, or candidate... you can't contribute to them.... Period.

FWIW - For Whatever Its Worth

Under the Constitution, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.” For his decisions, “he is accountable only to his country in his political character, and to his own conscience.” His choices cannot be questioned in court because “the subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”

Who penned these outrageous words? Democrats and many pundits might answer Vice President J.D. Vance. Over the weekend, Vance provoked an onslaught of criticism for suggesting that federal district judges “aren’t allowed to control the executive’s legitimate power.”

But the usual suspects would be wrong. The right answer is John Marshall, the greatest chief justice in Supreme Court history. And he did not squirrel this view away in a private journal. Instead, Marshall publicly explained that courts could not review presidential decisions on “political” subjects “entrusted to the executive” in a Supreme Court opinion.

He announced this principle not just in any case, but in Marbury v. Madison, the greatest opinion in Supreme Court history. The very same Marbury that concluded that federal judges should reject unconstitutional statutes, also recognized that courts could not intrude into the president’s exercise of his constitutional — dare we say “legitimate” — powers. Marshall’s opinion has given rise to the “political question doctrine,” which prohibits courts from reviewing decisions vested in the Constitution in the other branches, such as making war, prosecuting cases, and conducting impeachments. //

During the Vietnam War, Rep. Elizabeth Holtzman sued to stop the bombing of Cambodia (which President Richard Nixon had ordered). Holtzman obtained an injunction from a district court. The court of appeals promptly stayed the district court order. Holtzman petitioned Supreme Court Justice Thurgood Marshall, who oversaw that court of appeals, to vacate the stay. Marshall properly refused, writing “the proper response to an arguably illegal action [by Nixon] is not lawlessness by judges charged with interpreting and enforcing the laws.”. //

The question whether the president can fire heads of “independent” agencies such as multi-member commissions is still debated, but the clear trend of recent Supreme Court decisions indicates that the president can remove these officers if they refuse to carry out presidential orders. No doubt Trump’s recent removal of members of the National Labor Relations Board are intended to set up a case to settle this question at the Supreme Court. Our prediction is that Trump will win that dispute — decisively.

JD Vance @JDVance
·
If a judge tried to tell a general how to conduct a military operation, that would be illegal.

If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal.

Judges aren't allowed to control the executive's legitimate power.
3:13 PM · Feb 9, 2025 //

Rapid Response 47 @RapidResponse47
·
President Trump demolishes Fake News "reporter" @svdate on Air Force One:

POTUS: "I don't know even what you're talking about. Neither do you. Who are you with?"

@svdate: "HuffPost, sir."

POTUS: "No wonder. I thought they died."

11:08 PM · Feb 9, 2025. //

The president certainly has a way with reporters, doesn't he? Let's talk about the dishonest framing of Date's question, though.

Read what Vance wrote again. Did he ever "suggest" the administration would "enforce it themselves" regarding going around a Supreme Court ruling? Was the Supreme Court even mentioned at all? The answer to all those questions is no. Instead, what Vance did was state a plain fact, at least in his view of the law. Namely, that the judge is out of line in usurping the statutory authority of the executive branch to control the bureaucratic state.

No doubt, the remedy to those things will be an appeal, and when it reaches the Supreme Court, it will likely end up being a bloodbath for the bureaucracy. On that front, Democrats and the press should be careful what they wish for regarding waging these court battles. The only reason Roe v. Wade was overturned is because leftists picked a fight they weren't ready to win over a state law in Mississippi.

Do you know who did brag about ignoring the Supreme Court, though? That would be one Joseph Robinette Biden. //

MajorKong
7 hours ago
Vance has the benefit of being correct on the legal point as well. The relief is extra judicial. Not available to the court. Bondi needs to ask for sanctions against the judge at the next level. //

emptypockets
4 hours ago
So that's why HuffPo got a seat in the press briefing lineup. For their value as a chew toy.

St. Joseph, Terror of Demons
33 minutes ago

“Russell Vought was born to make corruption safe again,” freshman Sen. Andy Kim, D-N.J., said in one of the late-night speeches. “Vought believes that all of the power in the executive branch belongs to the president and the president alone.”

Senator Kim made a very silly comment. Vought is correct in stating that “all of the power in the Executive Branch belongs to the president and the president alone.”

The president is the Chief Executive of the Executive Branch, which means that all of power wielded by the Executive Branch comes from and through the president.

Here are the powers given to the President by the 1807 Insurrection Act, as modified in 2006:
https://en.wikipedia.org/wiki/Insurrection_Act //

This law, I am given to understand, provides a statutory exemption to the Posse Comitatus Act of 1878, which prohibits the use of the armed forces in civil law enforcement. In other words, President Trump would seem to have a tool here, if he chooses to use it. The Posse Comitatus Act also specifically states “…except in cases and under circumstances expressly authorized by the Constitution or Act of Congress…” This means that suppression of domestic insurrection is specifically exempted, as an Act of Congress – the Insurrection Act – allows the use of the military.

Now, I’m not generally in favor of the government, at any level, using force unless met first by force. But dip me in... something unpleasant if the events of the last few days ain’t been different. There is an organized, armed, destructive rebellion going on against civil authority. The protesters are blocking the public roadways, interfering with the law-abiding citizenry’s right to go about their daily business unimpeded, and possibly endangering lives by impeding the passage of emergency vehicles.

If the president won’t authorize the use of soldiers and Marines to quell the burning, rioting, and looting, then the only recourse is for private citizens to arm themselves in response and to use deadly force themselves in defense of the life, limb, and property of themselves and their neighbors. //

So, yes, the president has some tools to deal with these protests, if things get bad enough. But it's likely, for the time being, he's going to continue the "you made your bed, now you lie in it" approach.

America is an outlier among developed nations in offering unrestricted birthright citizenship. Not a single European country does. //

the global trend is consonant with President Donald Trump’s recent executive order ending unrestricted birthright citizenship. The United Kingdom, which had birthright citizenship dating back to the “ancient common law,” did away with it in the 1980s. Ireland got rid of it in 2005. New Zealand a year later. Germany, which tried to grab the mantle of “leader of the free world” during President Trump’s first term, doesn’t grant citizenship to a child of foreign parents unless one parent possesses a permanent right of residence and has legally resided in the country for at least eight years.

But somehow President Trump is “cruel” for calling for the end of unrestricted birthright citizenship in our own nation? Why would a nation affirmatively choose to create an incentive for illegal immigration and prioritize illegal immigrants’ children over law-abiding immigrants who apply for citizenship and follow the legal process? //

Why go to such lengths to ensure naturalized citizens adhere to our laws and respect our constitutional ideals, if we then freely dole out citizenship to the children of those who have thumbed their noses at our immigration laws and at the ideals of democratic self-governance that brought them about? What message does that send to those who completed the heavy lift of securing legal citizenship by naturalization? //

In 2018, the Pew Research Center reported that in the last decade or so, somewhere between 6 and 9 percent of babies born in this country were to illegal immigrant parents — meaning at times the figure was close to one out of every ten births. Even at the low end, the number of those births — around 250,000 in 2016 — was larger than the total number of births in any state other than California or Texas.

Amendment Three to the Constitution was ratified on December 15, 1791. It forbids the housing of any military service member in private homes without the consent of the owner. The official wording is written as such:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Third Amendment is commonly regarded as the least controversial element of the Constitution. It is currently the Amendment with the least litigation, and it has never been argued in a Supreme Court case. //

While the specific circumstances of the amendment are increasingly unlikely to unfold in modern times, the nature of domestic privacy in a person’s private home has been argued as a long-term, modern element of it. Some historians and legal scholars have since argued that the Amendment is applicable to matters surrounding eminent domain, government responses to terrorist attacks and natural disasters, and police militarization.

BugsOlDad
8 hours ago
Robert Mueller's restructuring of the FBI after 9/11 brought us to where we are today with agency's fall into a political weapon for the Marxist Democrat party. He pretty much changed the main focus of the agency's mission, and removed the more independent nature the field offices had and more centralized the control of the agency in DC. The Marxist Democrats are going to fight their arses off to prevent any loss of this powerful tool in their Marxist toolbox to go after their "political enemies", in other words, patriotic American citizens. We have to pray that weak in the knees Republicans (RINOs) don't kill this excellent opportunity to bring some semblance normality (my word), honest lawful investigations, Constitutionalism, and returning the agency back to the trusted entity it once was. At least as much as a law enforcement agency can be trusted. It's staffed as any other is, with flawed human beings. We have to hope that that those who give into flaws are kept from wearing the FBI in the first place. If it shows, that it's past the point of rescue, then I'm good with ending it's run now. Better now, early in Trump's term, where he can oversee its replacement, than later where a possible Marxist Democrat president could have that control and input to turn the agency into what they've been trying to turn the current FBI into, their form of KGB.

anon-eazz
4 hours ago
So of the FBI's roughly 100 year history, J Edgar abused authority for about 50 years. Then we had maybe 20-25 total years of benevolent transitional leaders. 10 years of Mueller incompetence and 10 - 15 years of Comey/Wray abuse. The standards set for Director of the FBI are pretty low. Hard as it is to admit, Clinton's appointment of Louis Freeh is probably the high point. //

Maximus Decimus Cassius
9 hours ago
With respect to Senator Kennedy and Director nominee Patel, the FBI has had 17 years (at least since 2008--Obama's 1st term--if not before then) to hire and release (through attrition, etc.) the agents they wanted.

I would argue the pool of "good agents" is so small that no amount of reform can save the agency. Anything less than a total overhaul (keep the forensics and technical labs) and releasing the gun and badge wearing agents is nothing more than rearranging the deck chairs on the Titanic.

Fishin'withFredo Maximus Decimus Cassius
8 hours ago
I have to agree. As a retired LEO I worked with them a number of times and was not impressed, to say the least. We don't need them. Every individual state has its own investigative body, just establish mutual aid agreements for cases crossing state lines and military intelligence for the overseas stuff.

mopani Fishin'withFredo
4 minutes ago
Take away their police powers, make them work with local police and sheriffs to make arrests etc. That will force them to be rigorous in their investigative work, because they don't just have to convince a judge to write a warrant, they have to convince the local police chief or sheriff to execute the warrant.

Eric Daugherty
@EricLDaugh
·
Follow
RFK just gave a flawless answer to Bernie Sanders asking if health care is a human right.

Bet Sanders didn't expect an answer this intelligent... he interrupted RFK IMMEDIATELY.

SANDERS: Is it a human right? Yes or no?

RFK: In the way that free speech is? It's different, because free speech costs nothing. In health care - if you smoke cigs for 20 years, and you get cancer - you are now taking from the pool of resources..-

12:12 PM · Jan 29, 2025

But Sanders wasn't done. He went off on a crazy rant about baby onesies that were produced by an organization that Kennedy had been involved with that said, "Unvaxxed unafraid" and "No vax, no problem." But apparently Sanders didn't know or couldn't absorb that Kennedy said he was no longer part of the organization or on the board. He just started shrieking his head off. Kennedy started laughing, as did Megyn Kelly, who was sitting behind him in the audience.

"Are you supportive of these onesies?" Sanders screamed.

"I'm supportive of vaccines," Kennedy calmly replied.

Sanders continued to scream, "Are you supportive of this clothing which is militantly anti-vaccine?"

Kennedy and Kelly started laughing, because it was just so ridiculous. "I'm supportive of vaccines... I want good science." //

DK1969
4 hours ago
Healthcare is not a human right because it's product of someone's labor (scientists, doctors, administrators etc.). If one has a right to product of someone's labor, it's called slavery.

Imagine if a woman lost her right to vote, protected by the 19th Amendment, simply because she crossed into a state with different historical views on sex roles. Or consider if a journalist’s First Amendment protections were recognized in one state but ignored in another. Such infringements are unthinkable — and rightly so.

Yet this is precisely the reality facing law-abiding gun owners who travel with concealed-carry permits. Their constitutional right to self-defense, which has been affirmed by the U.S. Supreme Court, is undermined by a patchwork of state laws.

Like other rights enshrined in the Bill of Rights, the Second Amendment exists to protect individuals from government overreach. Allowing states to restrict concealed-carry permits undermines the universality of these protections.

In states with left-leaning legislatures, such as New York and Illinois, gun rights are subjected to restrictions that would never be tolerated if applied to other constitutional rights. This double standard is deliberate. Unlike other amendments, the Second Amendment has been politicized to the point it is often treated as a second-class right. //

National reciprocity streamlines these inconsistencies by requiring states to honor permits other states have issued, similar to how driver’s licenses are universally recognized. Importantly, this legislation would not force states to change their permitting standards. It would simply ensure that permits granted in one state are respected in another, preserving the rights of permit holders while respecting state sovereignty.

Concealed-carry permit holders are statistically among the most law-abiding groups in the country. They commit crimes at rates significantly lower than the general population, including police officers. Allowing them to carry across state lines would not lead to chaos or increased crime. Instead, it would affirm their right to protect themselves and their families wherever they go.
A Matter of Equality and Justice

At its core, national concealed-carry reciprocity is about equality under the law. The current system effectively creates a two-tiered structure of Second Amendment rights, where citizens in some states enjoy full protections while others are without. This disparity is fundamentally at odds with the principles of equality before the law enshrined in the Constitution.

Leftists argue that national reciprocity would infringe on states’ rights. However, states’ rights cannot justify violating individual constitutional freedoms. Just as states cannot override the First or 14th Amendments, they should not be allowed to undermine the Second. The Constitution is the supreme law of the land, and its protections must apply equally to all Americans.

President Trump followed up his rampage through the National Labor Relations Board (Trump Goes Pearl Harbor on the National Labor Relations Board, Fires Chairman and General Counsel) by firing two Equal Employment Opportunity Commissioners and its general counsel. The newly reduced EEOC can no longer bring enforcement actions or initiate rulemaking as it doesn't have a quorum. //

Under Joe Biden, the EEOC bullied companies into submitting to DEI and replacing Equality with Equity.

Much like the defenestrated acting chairman at the NLRB, the two fired Democrats were not happy about the cruel turn of fate. //

Unlike the NLRB commissioner, whose firing seems questionable because the law says NLRB commissioners can only be fired for cause, the EEOC's enabling legislation does not require that.

The EEOC now only has two members and cannot act until President Trump nominates replacements. This is mostly a good thing.

I think there is something else going on with these firings. It seems like the Trump White House may be teeing up a challenge to a Supreme Court case.

In 2020, the CFPB was challenged for its blatantly unconstitutional structure. Under the law, it was managed by a single director who could only be removed "for cause." The Supreme Court agreed that allowing a single individual to control an agency outside the reach of the president to remove them was unconstitutional.

I believe the target of Trump's removal of three commissioners, one who can only be removed for cause and two without similar protections, is to convince the Supreme Court to overturn Humphrey's Executor vs. United States. This 1935 decision held that the president could only remove the commissioner of independent agencies for reasons established by Congress. The Selia decision established that did not apply to single commissioners; Trump wants to take a run at it to see if he can get that precedent overturned the way Chevron was reversed last summer; //

We'll see how this turns out, but even if Trump is wrong, the NLRB and EEOC will not be lumbering about the countryside and disturbing the livestock until the Supreme Court speaks. //

OrneryCoot
3 hours ago
There is something inherently wrong with the idea that the leader of the executive branch of government cannot fire persons under his authority, tasked with implementing his policy, in the executive branch. That is all kinds of "only in Washington" dumb. Trump is right to blast through that and try to tee up a SCOTUS decision. In the meantime, I will breathe a sigh of relief that these people are removed from their positions of power. Democrat appointed workers in the administrative state are open sores that need to be cut out.

anon-n5wm
6 hours ago
A woman wearing a cross in a room full of atheists, God bless America. //

Tech in RL
4 hours ago
It’s not suprising she’s good at her job. She was Deputy Press Secretary to Kayleigh McEnany, after all. She studied with the master. Trump is the most transparent president in recent history and makes her job even easier. She doesn’t have to lie like the DEI hire did. //

anon-wy307
4 hours ago
Seila Law vs. CFPB (2020). The President is the sole individual in whom the executive authority is vested, and the authority of the President to fire personnel is absolute. Congress attempting to interfere or be consulted violates the separation of powers. The 30-day notice is unconstitutional.

That was the ruling.

Error #1: The citizenship clause merely adopted the pre-Dred Scott common law rule that everyone born in the United States is automatically a citizen.

In 1856, the Supreme Court held in the infamous case of Dred Scott v. Sandford that the U.S.-born descendants of African slaves were not and could never become citizens, even though under the traditional common law rule, a person automatically became a citizen of the nation on whose soil he or she was born. The plaintiffs contend that the 14th Amendment’s citizenship clause was intended to restore this earlier common law rule of universal birthright citizenship.

They support this claim with a single, highly edited quotation from Sen. Jacob Howard, a Republican from Michigan, who was instrumental in drafting the citizenship clause: “This amendment … is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is … a citizen of the United States.” //

Instead, Howard was referring to the Civil Rights Act of 1866, which was valid federal law. That act was Congress’s first attempt to override Dred Scott, and statutorily defined birthright citizenship for the first time in American history: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

Far from being an adoption of common law universal birthright citizenship, the Civil Rights Act intended to bestow birthright citizenship only on the children of those who, like the newly freed slaves, owed complete allegiance to the United States and were subject to the fullest extent of its political jurisdiction. //

Indeed, the most damning indictment of the plaintiff’s contention comes from the very quotation they use to support it—at least when that quotation isn’t disingenuously edited. The very next line of the quote, which the plaintiffs in this lawsuit conveniently cut, reads: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

This clearly demonstrates that Howard believed they weren’t constitutionalizing the common law rule, but rather a rule that—consistent with the Civil Rights Act’s focus on allegiance to foreign powers—was much more selective in its bestowal of birthright citizenship. //

Error #2: This is an unprecedented action—the executive branch has long recognized that it can’t deny citizenship to children based on the immigration or citizenship status of their parents.

This assertion is only true if history begins in the first half of the 20th century. Unfortunately for the plaintiffs, it doesn’t. In the decades following the ratification of the 14th Amendment, the federal government regularly articulated a view of the citizenship clause that’s remarkably similar to that espoused in Trump’s order, and the executive branch issued citizenship documents accordingly. //

Error #3: The Supreme Court confirmed in Wong Kim Ark that the citizenship clause automatically bestows citizenship on the U.S.-born children of noncitizen parents.

Contrary to popular assertions, this is not what the Supreme Court held in the 1898 case of Wong Kim Ark v. United States. The question decided by the court in that case was far narrower: whether a child born in the U.S. to lawfully present and permanently domiciled immigrant parents was a U.S. citizen. And the court concluded that, indeed, the U.S.-born child of this narrow and specific subset of noncitizen parents is a citizen. //

In fact, the court repeatedly emphasized the lawful and permanent domicile of Wong Kim Ark’s parents, factors that are utterly irrelevant under the common law. A true common law opinion would have said, “He was born on U.S. soil, his parents aren’t diplomats or part of some invading army, so therefore he is a citizen.”

This is also why, for decades after Wong Kim Ark, leading constitutional law scholars continued to articulate a distinction between American birthright citizenship—“where the alien must be permanently domiciled”—and birthright citizenship under English common law, which applied even to temporary sojourners. //

Error #4: The president’s order will leave many children deportable and stateless.

It would rarely, if ever, be true that a U.S.-born child of illegal or nonpermanent resident aliens would be left stateless simply because he or she isn’t automatically granted U.S. citizenship. Virtually every nation (including the United States) recognizes some manner of citizenship “by blood,” under which a child is automatically eligible for citizenship when one or both parents are citizens, even if that child is born abroad. //

The plaintiffs, meanwhile, don’t bother articulating a single set of circumstances under which a U.S.-born child of foreign nationals would ever be completely ineligible for—or disqualified from—citizenship or nationality in every other country the world due to a confluence of legal technicalities and the fact of his or her birth on U.S. soil.